A Jurisprudential Analysis Of The 2024 Bangladesh Quota Reform Movement
Author: LawSphereX
Category: General Law
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A JURISPRUDENTIAL ANALYSIS OF THE 2024
BANGLADESH QUOTA REFORM MOVEMENT
Amrutasha Panda, National Forensic Sciences University, Delhi, School of Law, Forensic Justice and Policy Studies
ABSTRACT
This article is an appreciation of the relevance various schools of law find in the contemporary events. For this, the recent turmoil in Bangladesh has been chosen as the topic of analysis. This blog aims to present an analysis of the way the law has interspersed the Bangladesh upheaval by adducing instances that have their genesis in the multiple schools of Jurisprudence and how the improper appreciation of the ideologies of the respective schools by the government of the day has led to the turmoil has been reflected upon. The multifarious issues and their interrelation with the Schools of Law are explored and analysed.
The laws that govern the developments in this turmoil have been traced to their school of thought and an effort has been made to spot the missteps of the Bangladesh government in formulating laws that were inconsistent with the ideologies of those schools to which they have been traced back. The article solely based on doctrinal research, finds that the failure to coherently align the legal developments with the ideologies of the Sociological School, the Historical School, and the Realist School had a tacit yet discernible role in the said turmoil. This analysis is intended to meaningfully contribute to the literature of jurisprudence that would serve to both alert and enlighten future governments across the globe to preclude such turmoils. Keywords: Bangladesh, Turmoil, Jurisprudence, Ideologies, law
INTRODUCTION
The 2024 Bangladesh Quota Reform Movement also known as the July Revolution created a sea change in the political scenario of the nation as it led to protests which later turned into a massacre and the toppling of the established Prime Minister, Sheikh Hasina who had once brought revolutionary changes in the development of the country. In its true nature, this short article is an effort to put the spotlight on the omnipresence of law in the world and how the failure to acknowledge the jurisprudential concepts as propounded by the scholars as Bangladesh happens to be an emblematic example of this.
FAST FORWARD TO NOW
The reservation breakdown of the country after independence as demarcated by Bangabandhu Sheikh Mujibur Rahman was 40% for those from underrepresented districts, 10% for the women who were victimized during the war, 20% for the meritorious students and 30% for freedom fighters which was later extended to their families by his daughter Sheikh Hasina since after a time as many had died only 10% of the quota was getting filled. The Bangladesh National Party brought a complete overhaul into this structure when Sheikh Mujib, the founding father of the nation was assassinated and Ziaur Rahman took the reins of the state. The quota for women who were largely victimized was largely going unclaimed, it was thrown open to all women in 1985.
Later, the government came up with another 5% quota for the indigenous communities or the tribals and reduced the quota for those from underrepresented states to 10% from 20% leading to the rise of quota for meritorious students to 45% from 40%. In 2010, when Sheikh Hasina was back in power, she extended the quota to the grandchildren of the freedom fighters as well as the population of actual freedom fighters was increasingly decreasing and brought a new quota share of 1% for the differently abled persons in 2012. Nevertheless, this 30% share was never utilized to the hilt and governments posts were going empty despite any kind of paucity of capability and worthiness in the populace and the Awami League chose to remain oblivious of this fact. After all calculations, the reservations only left 44% percent of the government posts open to merit.
The student community was perplexed by this. To them what this structure conveyed is that
they needed to belong to a certain class or category or else their chances of securing government employment on account of merit and hardwork were wafer thin. Aljazeera reports- “They say the quota favours allies of the governing Awami League party, which led the independence movement against Pakistan. ”1 They turned their angst into a petition against this so-called discriminatory quota system. On March 2018, the Bangladesh High Court rejected the petition. 2 Few days post this, Sheikh Hasina released a statement that she has no plans to alter the contentious quota structure which set off a student agitation. However, contrary to the public expectations, Sheikh Hasina scraped the quotas altogether. This came as a big blow to the students who just wanted to eliminate the elements of discrimination from the quota structure.
But Hasina remained adamant and did nothing to bring the reservation system back. However, on 5 June 2024, the Bangladesh HC annulled the government notification scraping the quotas. The Appellate Division of the Supreme Court upheld the HC decision and hence the present scenario. 3
THE JURISPRUDENTIAL ANGLE OF THE JULY REVOLUTION
This analysis of a contemporary event from the vantage points of the Schools of Law locates the law in the course of time and events and thereby encourages a chain of dissection, reflection, and evolution of legal concepts that contemporary times need. This is the cause that jurisprudential analyses of such epochal episodes intend to serve. Indeed, one of the tasks of jurisprudence is to construct and elucidate organising concepts serving to render the complexities of law more manageable and more rational; in this way, theory can help to improve practice.
4 While substantiating the need to delve into such works of analysis on legal philosophy, Max Travers in his book says- “Although it might seem remarkable to a nonspecialist that so much intellectual effort is still expended on debating these philosophical positions and various elaborations or off-shoots, it should be remembered that the objective of this field of legal philosophy is to think through fundamental problems in a systematic 1 Al Jazeera, Bangladesh Top Court Scraps Most Quotas That Caused Deadly Unrest, Al Jazeera, Jul. 21, 2024.
2 Nabban T Haque, Why the quota reform writ was rejected, DhakaTribune, (Mar 25 2018 9:45 PM),
https://www.dhakatribune.com/bangladesh/court/139775/why-the-quota-reform-writ-was-rejected. 3 See para. 3, Md. Jahid Al-Mamud, Bangladesh’s Quota Judgment: Balancing Legal Formalism With Social judgment-balancing-legal-formalism-with-social-movement-oped/. Movement, eurasiareview, (Jul. 26, 2024), https://www.eurasiareview.com/26072024-bangladeshs-quota-
4 P J Fitzgerald, Salmond on Jurisprudence 4, (12th ed.2020).
fashion.”5 So what spurred the bloody movement is seemingly the 2024 Supreme Court ruling that upheld the 30 per cent quota for the descendants of Bangladesh freedom fighters in the Government services.6
THE ROLE OF POSITIVE SCHOOL OF LAW
Here, the Positive School of Law comes into play as the school believes in what is posited i. e. ‘written by the sovereign’ as Austin, the foremost icon of this school had once said, “law is the command of sovereign, backed by sanctions. ”7 The HC judgement which was upheld by the supreme court this year in June 2024 while revalidating the quota had given the justification that because Articles 111 and 112 of the Constitution of Bangladesh have it in their letter, they have to abide by the 2013 ruling of Appellate Division. Article 111 dictates, “The law declared by the Appellate Division shall be binding on the High Court division, and the law declared by either division of Supreme Court shall be binding on all courts subordinate to it. ”8 Article 112 says, “All authorities, executive and judicial shall act in aid of the Supreme Court.
”9 Positive law refers to statutes, codes and regulations created by legislative bodies, formally enacted by proper authority for governing organized societies. This is undeniably, the clearest praxis of the Positive School of Law in the Bangladesh turmoil issue. How the “law as it is” made a difference in the law to be followed in the recent circumstances is perfectly instantiated here.
THE SOCIOLOGICAL SCHOOL OF LAW
THE QUESTION OF INDISPENSABILITY OF THE QUOTA SYSTEM
5 Max Travers, Understanding law and society 15, (1st ed. 2010)
6 See para 4, Tariq Karim, Quota Protests in Bangladesh: Causes and Consequences, ISAS PAPERS (Institute of South Asian Studies, National University of Singapore), (Jul. 27 2024), https://www.isas.nus.edu.sg/papers/quota-protests-in-bangladesh-causes-andconsequences/.
7 John Austin, The Province of Jurisprudence Determined, (1st ed. 1832).
8 Bangladesh Const. art.111
9 Bangladesh Const. art. 112.
This single piece of instance also finds a place for the Sociological School of Law where the changing social dynamics and current societal context are foregrounded. The HC judgement this year re-validated the 2012 judgement having done certain amendments to that. Previously, the rule was to keep the posts vacant if they were not getting filled up by persons belonging to the category concerned. This has been expunged by the HC which stated that the respondents are at liberty to resort to the general merit list of the public examination if the reserved seats lie vacant. 10 The judgement also made it much more adaptable to present times by empowering the government to change, increase or reduce the ratio or percentage of quotas as and when necessary. Here the current socio-political affairs have successfully led the verdict to favour them and shed the rigidness of the precedents.
Dean Roscoe Pound’s work gives this message the most explicitly that law should adapt to changing social conditions aptly resonating with him, this instance exemplifies the way social developments and forces impact the development and application of law. “In the praxis of Common law with its worship of precedents, the legal community develops a natural tendency to look backwards instead of forwards and to regard every contemporary question as a historical one. Jurisprudence can teach it to look if not forwards at least sideways, and to realise the answers to new legal problems must be found by consideration of present social needs rather than in the distilled wisdom of the past.
”11 We find this analysis of Fitzgerald materializing in the courtroom when in view of the escalating clashes, the top Court was compelled to respond to the public outcry and hence overturn the HC order that too on an urgent hearing as the appeal was initially scheduled on August 7. It allowed 93% of the recruitment in government employment to be done on the basis of merit and 5% reservation for the children of freedom fighters in place of their grandchildren. This structure was decided with the conferment of liberty to the government to cancel, amend or reform it, considering the situation and recruit the candidates from the general merit list if these reserved posts fall vacant.
SOCIOLOGICAL SCHOOL OF LAW MISCONCEIVED
“A basic tenet of the Sociological School is a re-examination of inherited premises of the old law, which may not function in the changed world of today.”12 The inherited premise in this 10 Star Digital Report, Govt. can change quota ratio, observes HC, The Daily Star (Jul 11, 2024, 6:45 PM), https://www.thedailystar.net/news/bangladesh/crime-justice/news/govt-can-change-quota-ratio-observeshc3654431
11 P J Fitzgerald, Salmond on Jurisprudence 5, (12th ed. 2020)
12 E F Albertsworth, Program of Sociological Jurisprudence, 8 A.B.A. J. 393, 395 (1922).
case was that the grandchildren of freedom fighters must get the privilege of reservation for their birth happens to be in the bloodline of those spirited men who have shed their blood for the independence of their nation. The extent of re-examination that the court could do, halted at the conclusion that the general merit list would find precedence in case the families of freedom fighters do not fill the government posts earmarked for them.
But when the combustible nature of the situation then prevalent had already warranted the antedating of the hearing in the Supreme Court, a skilful de-escalation of the flare-up might have taken place, had the extent of re-examination been extended to the topics of whether reservation is an indispensable way to honour the sacrifices of the patriots who wrested independence for the nation while putting their life on the line and whether even the children of freedom fighters constitute a class requiring affirmative action.
THE HISTORICAL SCHOOL OF LAW MISCONSTRUED
The Historical School of Jurisprudence finds a place where the judiciary assesses the law through history. The luminaries of this school believed that legal principles were not abstract deductions but were products of historical development. It was reasoned that since in 2013 the appellate division had upheld the 2012 HC judgement that illegalised the government order to abolish the 30% quota for children of freedom fighters in first and second-class government jobs because the history has Sheikh Mujib saying that employment in Government services will be reserved for those who would fight for the cause of freedom. 13 In 2024, again the HC assessed the 2013 ruling from the lens of the history of the aftermath of the Bangladesh liberation war and also stated that not conforming to the decision of the appellate division would be contemptuous.
This is how it contributed to the development of the legal status quo of the issue of reservation in Bangladesh. This episode is the materialization of what Hugo had said, “the legal rules should be understood in the light of their historical context”. Seemingly, this is where the government of the day missed the mark as it did not take into account the social forces operating in the process of the evolution of law. The rationale behind the 2010 decision to extend the quota to the grandchildren of freedom fighters cannot be the same that the government in 1972 had while rolling out quotas for freedom fighters, as it had been a long time and situational dynamics relating to the freedom fighter class had already changed. Hence 13 See para 2, Mamun Abdullah, Verdict on quota reinstatement in government jobs, DhakaTribune, (Jul. 14, 2024, 8:42 PM) https://www. dhakatribune.
com/bangladesh/court/352095/hc-releases-full-verdict-onquotareinstatement.
the motive of the 2010 government to widen the quota is inconsistent with the then charged national sentiment and shared sympathy for the “Mukti Joddhas” post-Bangladesh liberation war that built the foundation for the introduction of the quota system that was a tribute to them. This inconsistency is a failure to acknowledge the historical jurisprudence that examines the manner, circumstances and factors responsible for the growth of such laws.
THE REALIST SCHOOL OF LAW IMPROPERLY PRACTISED
All these instances are consistently emphasising the predominance of the Realist School of Law. The Realist School of Law contends that law has emanated from the judges, therefore law is what courts do. 14 For them, judges are the lawmakers. All this overruling and upholding the ruling is done within the confines of courts and the entire nation is subject to that. Though the legislature must have made the law, it is the judiciary that is determining the course of it. The Contention that Realists put forward is that judicial decisions are not based on abstract formal law but the human aspect of the law and the lawyer also impacts the decisions of the court. The work of many jurists like Karl Llewellyn and Oliver Wendell Homes Jr. have placed much emphasis on the importance of judicial decisions and the role of judicial behaviour.
Thus, the judiciary having the centrality in the entire issue connotes the overarching nature of the Realist School of Law. But, in this case, the ultimate overhaul of the quota system is a judge-made law, which stands as a replica of the ideology of the Realist School. In 2012, 2013, and 2024 the decisions of the High Court and Supreme Court have hardly relented while favouring reservations in their final orders. In a broad view, these continuous protests even after the rulings of the top court seem to be a disregard for the authority of the judicial systems, which insinuates an erosion of faith in the judicial system of the nation. Though the pressing needs and issues of the Bangla society i. e.
a compromise with meritocracy, reserved posts going vacant, and the alleged favouritism of the quota system towards the allies of the Awami League can be a highly probable cause behind the resistance to these rulings yet such instances shake the very credibility of the ideology of the Realist School if law is taken to be a judge-made one. There is India situated just adjacent to it having a reservation cap of 59. 5% but no such violent uprising has continued on a protracted basis and this achievement can only be owed to the prudence of the judges whose works like conceptualising the creamy layer and many more that have always responded
14 Infra, 121
to the concerns of society, seem to have appreciated the spirit of jurisprudence that further shows them the way to deal with and calm such volatile situations. This prudence goes a long way in ensuring and restoring the faith of the public in the judicial system. Frank Jerome quotes- “Realist School has liberated the judges from the enslavement of unduly rigid legal concepts and exhorted them to take into consideration the ground realities of the social facts while deciding the cases.
”15 What symbolises rigidity here is, each time while upholding the quotas with subtle modifications the courts implicitly practised the precedential boundedness and the fact that the top court ultimately acceded to the demand of protestors cannot be claimed to be a consideration of ground realities but all it can be termed is- “giving in to the societal pressure” for consideration of ground reality would have happened when the court would have reflected upon questions like what is it in the quota system that makes the candidates and their merit to feel discriminated against.
AN INTERPLAY OF THE POSITIVE AND SOCIOLOGICAL SCHOOL OF LAW
A yet another intersection of the Positive and Sociological School of Law demands attention.
Here, the sovereign is not the sovereign which Austin meant. According to him, the Sovereign is the sole supreme commander who must have a human form so that the people in the society obey him and establish his sovereignty16. But today, the denotation of the word has undergone change. The authority of the sovereign has been placed upon the constitution since every functionary of the state derives their power from it. As we derive from his book, The Province of Jurisprudence Determined “during transitions, the concept of sovereignty remains relevant. The concept of Sovereignty assumes authority and the population adapts its obedience patterns accordingly. ” So, even the commands of the upcoming and outgoing sovereigns face the forces of society’s evolution. This underscores that law is a social phenomenon.
Witnessing such deadly clashes and the seemingly unending protests, the Supreme Court scrapped the majority of quotas on government jobs. The Attorney General brought to the public the decision of the Appellate Division of the Supreme Court which downsized the quota limit to 7%, leaving 93% of government jobs open to the rank holders of the merit list of the
15 Dr. N.V. Paranjape, Studies in Jurisprudence and legal Theory 129, (9th ed. 2019)
16 G.W. Paton, A Textbook of Jurisprudence 76, (4th ed. 1972)
public examination.17 Again, the Sociological School enjoys its footing as here also the drastic upheaval in the Bangla society necessitated the court to alter the law to meet their needs thus letting the social forces shape the legal norms and proving yet again that law is driven by the prevailing social context to a much larger extent.
THE KEY TAKEAWAY
The opinion that the article intends to voice is that a democratic setup is not solely established by enjoying popularity in a majority of constituencies but it is so when the helming stakeholders in a government carry and put into practice an assiduous approach towards the will of the people. Like the instance in the topic, when the stakeholders pass rulings and orders in reaction to the heat of the different forms of public uprisings, such rulings seem whimsical and are taken without giving due consideration to the core issues mired in the web of the underlying causes that lead to the demands of the remonstrating public. The Bangladesh incident serves as a clarion call to uphold democracy in spirit and not in letter which happens when the palpable efforts of governments make people feel that their opinions do make a difference and that their concerns are not deemed alien.
Ernest Renan leaves an interesting solution for future governments navigating such turmoils in his famous words- “The existence of a nation... is an everyday plebiscite. ” His message was that the nation whose nationals actively participate by bringing into notice their collective will and consent is a living one. For this, a plebiscite seems a platform more suitable than any other. Such turmoils are usually a result of issues causing public resentment over a long period of time that the government does not bring an effective answer timely. Just the way the Election Commission of India functions as an independent body, likely establishment of an independent Plebiscite Commission and conferring upon it a constitutional status might be of vital help. This commission would operate on an everyday basis.
Its function would be to conduct plebiscites of such community issues that involve a particular section of society or a section of people with differing opinions on the same issue. In case, the majority is attained by a very small margin, the commission shall have the power to formulate other facilitative policies that support the just elements of their demands, for the unfavoured section and to direct the local 17 See para 8, Md. Jahid Al-Mamud, Bangladesh’s Quota Judgment: Balancing Legal Formalism With Social Movement, eurasiareview, (Jul. 26, 2024), https://www. eurasiareview. com/26072024-bangladeshsquotajudgment-balancing-legal-formalism-with-social-movement-oped/.
government authorities to implement those policies. The commission would have a grievancehandling department where people would be able to send letters specifying their issues and a policy formulation department where at least 50% of the officials are retired professors who have specialisations on the subject of the issue. The head of the commission would be a nonpartisan person whose appointment should be done by a committee consisting of the prime minister, the leader of opposition, the senior most male judge of the Supreme Court and senior most female judge of the Supreme Court. The fact that people would be given a direct say in the matter that concerns them the most and that they would be able to convey their community concerns to a branch of the government would make it very difficult for the commission to lose the trust of the public.
Yet transparency would be the key to ensuring public faith.
CONCLUSION
The Bangladesh protests and the military takeover of the country is a significant development in the politics South Asian region. It has been chronicled very coherently how the issue had its past rooted in the aftermath of the Bangladesh Liberation War and the chain of politico-legal events that transpired into the current tyranny of the nation. The roots of these developments that took place in the turmoil and the remedies that followed them are traced back to the various schools of Law. This article argues that the orders of the government and the courts could not resonate with the sentiments of the people consistently which over a long span of time led them to pent up their angst. Ultimately, this angst unfurled in a precarious manner as and when these orders were passed.
The application of scholarly wisdom that jurisprudence, as a subject holds, can help all three institutions in government with tactful approaches to such challenges. It promotes healthy governance resulting in a happy citizenry. According to the findings of the article, on account of the public unrest, the courts should have critically evaluated in depth whether honouring the sacrifices of freedom fighters causes any sort of compromise with the merit of the equally valuable compatriots who do not happen to be either their children or grandchildren. More importantly, the topic of the indispensability of reservations for the families of the Mukti Joddhas in government employment should have been carefully mulled over.
The Sociological School professes social dynamics to be the key guide of the course of law and is the same that the Realist School advocates to be done by the judges but the courts of the nation could bring more seriousness and better analysis of the prevailing social dynamics and then had they overhauled the quota system, the public reaction could have been relatively
complacent. The fact that the very reason behind widening the quota to the grandchildren of the freedom fighters was not properly consistent with the purpose of this quota as envisaged in the history of the early 1970s is inconsistent with the concept of historical jurisprudence.